JUDGMENT Ryves and Gokul Prasad, JJ.
1. The circumstances which have given rise to the present appeal are as follows: It appears that, on the 6th of December, 1906, Gur Prasad Rai, defendant No. 1, made a mortgage of certain specified sir plots in favour of the predecessors in title of the plaintiffs for Rs. 799-15. On the same day he mortgaged another plot to the same persons for Rs. 99-15. Both these documents were to carry interest at 2 per cent, per mensem if possession was not delivered there under. Defendant No. 2 is the son of defendant No. 1. On the 16th of June, 1914, defendants Nos. 1 and 2 executed a sale deed of the mortgaged plots in favour of the plaintiffs and on the same day they executed a perpetual lease of those plots in favour of certain persons benami for the plaintiffs. It appears that defendants Nos. 3 to 5 brought a suit for pre-emption and obtained a decree for possession of the plots mentioned above and also got a declaration that the perpetual lease was bad. On the 30th of August, 1915, they dispossessed the plaintiffs from the properties which were the subject of the pre-emption decree and the plaintiffs now say that because of the pre-emption decree the defendants did not become entitled to actual possession of the properties but they had acquired only the proprietary rights in those plots, and they therefore claimed, first, that the possession of the properties in dispute be restored to them as mortgagees and they might be allowed Rs. 216 by way of damages for the period of their dispossession. In the alternative they claimed a decree for the mortgage money. The defence of defendants Nos. 3 to 5, the pre-emptors, was that the suit was barred by Sections 47 and 11 of the Code of Civil Procedure. They further pleaded that the mortgages of 1906 had ceased to exist because there was a novation of contract in 1914. The first court gave the plaintiffs a simple money decree for the mortgage money against the defendants Nos. 1 and 2, and dismissed the claim against defendants Nos. 3 to 5. The learned Judge of the court below has come to the conclusion that the claim against defendants Nos. 3 to 5 was barred by Sections 47 and 11 of the Code of Civil Procedure and that the plaintiffs wore not entitled to a decree even against defendants Nos. 1 and 2 because their mortgages had ceased to exist and because they had merged in the sale deed which was pre-empted by defendants Nos. 3 to 5. He also held that the plaintiffs had no cause of action. The result was that he dismissed the claim in toto. The plaintiffs come here in second appeal. It has been contended on their behalf that there has been no merger, inasmuch as the perpetual lease which is said to have had the effect of satisfying the mortgages has been found to be invalid and therefore the mortgages remain intact. It was also contended on their behalf that they had a cause of action because they had been dispossessed of the mortgaged properties. The case came on before us for hearing on the 1st of June, 1920, and we referred the following issue to the court below for disposal: "Did defendants Nos. 1 and 2 give possession, actual or constructive, to the appellants tinder the usufructuary mortgages of the 6th of December, 1906, and if SO, when"? The finding which has been returned by the lower court is that the mortgagors were not in possession of the properties in dispute at the date of the mortgages, inasmuch as the properties were in possession of prior mortgagees, but that some time before 1315 Fasli the plaintiffs redeemed the earlier mortgage and have since then been in possession partly through their sub-tenants. The result of this finding is that after taking the mortgages the plaintiffs mortgagees got pos-session of the mortgaged properties by virtue of the same. That they have been actually dispossessed admits of no doubt. We agree with the view taken by a Bench of this Court in the case of Nakchedi Ram v. Ram Charitar Rai Weekly Notes 1897, that dispossession by another person holding a better title than the mortgagors comes under the provisions of Section 68, Clause (c), of the Transfer of Property Act. The plaintiffs would, therefore, be entitled to the mortgage money. It is not alleged that the mortgage money has been paid or that the mortgages have been redeemed in any other way, nor is it stated that the mortgagors gave any other property to the mortgagees in substitution for the mortgaged properties. We cannot see any principle of law under which the mortgagors can say that the mortgages have been wiped off. We are distinctly of opinion that this is not a case of novation of contract. The mortgagees could not get back possession of the properties, because the lease in their favour has been declared to be invalid and the sale to them has been the subject of a decree for pre-emption in favour of defendants Nos. 3 to 5. The result is that the mortgages revive and the plaintiffs are entitled to fall back upon them, see Kiam-ud-din v. Rajjo (1888) I.L.R. 11 All. 13. The present appeal is confined to the plaintiffs' claim for money against the defendants Nos. 1 and 2 and we think that, having regard to the fact that they have been deprived of their mortgage security, they are entitled to recover the money from the mortgagors respondents. The result is that we set aside the decree of the court below and restore that of the court of first instance with costs in all courts.